Back in May, the Supreme Court declined an opportunity to review an Ontario Court of Appeal ruling in Davis v. Guelph (City). In dismissing the appeal, the Court has left a vital issue unresolved -- do "right of entry" provisions in Municipal and Local Government Acts violate section 8 of the Charter of Rights and Freedoms?
Erica Davis had gotten into an argument with a neighbour. As too often happens, the argument led to the neighbour calling in a bylaw complaint against Erica for having standing water on top of the tarp covering her swimming pool. On May 9 and 29 of 2006, Ray Borthwick, the bylaw officer, investigated the complaint by peeking over a fence into Erica's backyard from a neighbour's yard. Having determined that the pump wasn't working, and there was water on top of the tarp, he left a notice on Erica's door informing her that she was in violation of the city's standing water bylaw, and that she had to fix the problem by June 6.
Here's where things get interesting. Erica left the country to attend a funeral on June 7. On June 15, enforcement officers attended her property to see if she had complied. Finding no one home, they decided to enter her backyard, roll up Erica's tarp, and drain her pool to a level below the entry valves that allow the pump to keep the water circulating. The liner dried up, began to peel away from the sides, causing the earth around it to start collapsing into the pool.
Now back in the country, Erica asked the city for compensation for having damaged her swimming pool in a letter dated June 26. The city never bothered responding to her. On August 10, officers went to her house, and drained all of the water from her swimming pool. It was at this point that Erica started an action against the City in order to be compensated for the damage they had done to her pool.
But the City was intransigent. Two years later, on May 26 of 2009, while the action was still pending, Reynan issued a Repair Order, giving Erica until June 26 to fix the pool the city had damaged or face a fine of up to $50,000. She appealed the decision to the Property Standards Committee who, without an explanation, confirmed the Repair Order on June 23. The only option left to Erica was to take her case before the Ontario Superior Court of Justice.
At this point, you might be shaking your head. Why didn't Erica charge the bylaw officer with trespassing on her property? Surely bylaw officers can't just walk in your backyard and start fooling around with your swimming pool, can they? Isn't it highly unusual for an officer to start peeking over fences into your backyard from a neighbour's property?
In short, don't we have a reasonable expectation of privacy in our backyards? And isn't that reasonable expectation of privacy protected against unreasonable search and seizure by the Charter of Rights and Freedoms?
As I wrote in my last blog post, section 436 of the Ontario Municipal Act allows municipalities to pass bylaws that give their officers permission to walk into your backyard, and onto your private property, without having to give the property owner notice, and without a warrant.
Erica managed to win a big victory representing herself before the Superior Court, but the Court of Appeals overturned everything. The Superior Court found a breach of section eight, and the judge presiding over her case in Davis v. City of Guelph found that the City had acted with bias against Erica, that they helped cause the damage to the pool, that they, basically, acted like a bunch of bullies.
For their part, the Court of Appeal in Davis v. Guelph (City) concluded that we have a "diminished" expectation of privacy in our backyards, making the Charter's protections inapplicable. We expect sales and delivery people to walk into our backyards without our permission to try and find us, so we can't complain if bylaw does the same for different purposes.
Our only option may be to take draconian steps to block every member of the public from going into our backyards. A gated and tall fence might do the trick, as might posting a notice. Of course, we shouldn't have to do any of those things to keep strangers with city business cards from going into our backyards. Barring someone else willing to fight bylaw bullies all the way up to the Supreme Court, we could also push to have section 436 of the Ontario Municipal Act repealed.
Section 436 is not necessary. Alberta's equivalent section, section 542, requires that bylaw give you notice, and, if you send bylaw packing, they have to get a warrant. Saskatchewan (s. 362) and Manitoba (s. 239) also refuse to give bylaw no-notice, no-warrant rights of entry, and neither do any of the three Territories. Somehow, they manage to have effective municipalities, while respecting our privacy.